성격증거의 허용성에 관한 연구 - 비교법적 고찰을 통한 성격증거법칙의 도입과 허용성의 검토를 중심으로 -

Abstract

Psychological research of the nature of character indicates that when the character is built, environmental influence is more evident than genetic factors and consistency may appear if there is something in common in relation to situational factors when measuring the character. In addition, it must not be prejudiced when measuring the character. According to legal principles of character evidence of the UK and the USA, it includes character evidence of the third party including witnesses etc. as well as that of defendants and victims. Since confusion may arise because there are no clear criteria if the law of character evidence is not introduced, it's necessary to study it in a systematic manner and do legislative introduction. In relation to the introduction of the law of character evidence, first of all, its concept should be established, and regulations should be made dividing character evidence of defendants,victims and the third party, good character evidence and bad character evidence, and there should be regulations on ways of adimissioning character evidence. For this legislative review, it's necessary to examine both reform of the substantive law which is giving disadvantages regarding the fact of a criminal record according to the current law and theory of separation of trial proceedings to divide the fact finding procedure and the sentencing procedure. Admissibility of character evidence should be reviewed employing the current regulations to examine relevance under the current law in which the law of character evidence has not been introduced systematically. At this time, the presiding judge must examine whether character evidence can be allowed or not taking considerable value of the character evidence into consideration along with prevention of unfair prejudice which is a ground of excluding character evidence. As the fact of a criminal record which is bad character of a defendant is submitted directly to the court according to the current law, placing a limit upon character evidence of a victim only may cause rather unfairness problem. Since good character evidence of character evidence is less likely to cause unfair prejudice compared to bad character evidence, the admissibility should be differentiated compared to bad character evidence. For methods of presenting this character evidence, the presiding judge's appropriate right to command a case is required, and she or he ought to explain to jurors concerning admissibility and reliability of character evidence.